Basic Structure Doctrine Is Legitimate & Sound: Kenyan Court Of Appeals Extensively Quotes Kesavananda Bharati Judgment

One of the hotly contested issue before the Kenyan Court of Appeals in BBI judgment was whether the Basic Structure Doctrine expounded in Kesavananda Bharati by the Indian Supreme Court is applicable in Kenya or not. The majority judges of the seven judge bench held that this doctrine is applicable in Kenya and that the basic structure of the Constitution can only be altered through the Primary Constituent Power. This must include four sequential processes namely: civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum., the majority held.Before the Court of Appeals, the Government had contended that this doctrine not be applicable in Kenya because the power to amend the Constitution in India is constituted power that vests exclusively in Parliament, and unlike Kenya, does not give the Indian people the right of altering the Constitution through a referendum. It also highlighted the lack of unanimity margin in the Kesavananda case of (seven –six) to contend that its application is questionable. The rationale of the decision in the Kesavananda case was to curb abuse of the amendment power by India's Parliament, while the current Kenya Constitution has inbuilt mechanism which limits Parliament's power to amend certain Articles of the Constitution, and such amendments require approval of the people through a referendum, it was contended. The Attorney General also submitted that the doctrine has been roundly rejected in many contexts and jurisdiction.Justice KiageJustice Kiage's judgment extensively discusses this doctrine vis-a-vis Kesavananda Bharati and holds that that the basic structure doctrine is legitimate and sound. The President Justice Musinga and Justice F. Tuiyott in their judgment, specifically stated that they agrees with these views and findings. The following are some observations made in the judgment by Justice Kiage. Analogy of a houseThere is a certain undeniable simplicity to the notion. I thought of it as a house. Any and every house, be it simple or complex and elaborate, must have some structure with its bare essentials. Even as some houses may have fewer items than others going into their basic structure than others, so would different Constitutions differ in complexity. I was pleasantly surprised to find that Joseph Raz, in Between Authority and Interpretation (Oxford University Press 2009) at page 370 uses the analogy of a house to differentiate between minor changes to the Constitution like redecorating a house, and major ones that alter its character.'Fallacious' Contention That Doctrine Is Roundly Rejected I also find it curious that the submission was made that the doctrine "has been roundly rejected in many contexts and jurisdictions". The Hon. Attorney General is, with respect, not right in submitting that the basic structure doctrine has been "rejected by a vast majority of courts around the world." I have carefully and painstakingly read through the numerous cases, books and articles cited by the parties before us, and I find no factual basis for so bold and rather fallacious an assertion.In Malaysia, the judge found that the basic structure doctrine is more accepted than rejected and that other asian countries such as Bangladesh and Pakistan have embraced and fully affirmed Bulky and numerous as they are. But read them I haveI note with a measure of bemusement that while castigating the learned judges for relying on foreign jurisprudence, the aggrieved appellants have laid before us numerous decisions of foreign courts. I can only take it that they intended that we would consider the said decision and authorities and hopefully be persuaded by them. And consider them I have, for many hours, days and weeks. I need to point out, however, that I have had serious difficulties with the commentaries and submissions by counsel that have accompanied the cases cited. I have already termed some of those submissions to be exaggerated or fallacious. I was at first minded to treat them as a case of honest misapprehension of the judgments referred to in the part of counsel but, considering the regularity, consistency, and repetition of some of those wholly inaccurate comments and submissions, I cannot but wonder whether they were calculated to mislead the Court. They may have been made in the hope, alas vain, that we would not take the trouble to read the authorities ourselves - bulky and numerous as they are. But read them I haveBasic structure doctrine is legitimate and soundThe conclusion I have arrived at out of my forays into all the jurisprudence and learning I have referred to, and much more besides, is that the basic structure doctrine is legitimate and sound. I would think it strange that anyone would doubt the existence of a basic, fundamental, essential core being the pillar upon which our Constitution stands, and from which its character, ethos and identity flows.The judge also discusses Indian Supreme Court...

Basic Structure Doctrine Is Legitimate & Sound: Kenyan Court Of Appeals Extensively Quotes Kesavananda Bharati Judgment

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Basic Structure Doctrine Is Legitimate & Sound: Kenyan Court Of Appeals Extensively Quotes Kesavananda Bharati Judgment

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